States and Feds Diverge on Fair Sentencing Practices

State courts have proven more willing than the federal government to protect people from serving prison time for crimes they were acquitted of.


Of all the unjust features of our criminal legal system, one is particularly shocking: you can serve prison time for charges that you were found not guilty of.

This is exactly what happened to 17-year-old Daytona McClinton. A jury found him guilty of robbing an Indianapolis CVS with a group of friends, an offense that carried a 57– to 71-month prison sentence under the Federal Sentencing Guidelines. The jury said he was not guilty of murdering one of the other people involved in the robbery. But the judge locked him up for decades anyway, noting that the murder was “the driving force in this sentence.”

The practice, called “acquitted conduct sentencing,” is perfectly legal under the U.S. Constitution. But state supreme courts, which have the power to interpret their state constitutions, provide an independent avenue for addressing this unfair legal loophole for excessive punishment. Although states can’t change federal sentencing practices, fairer state sentences are a crucial step toward a more just criminal legal system. That’s because almost 90 percent of incarcerated people in the country are in state custody, as opposed to federal prison.

All three branches of the federal government have recently refused to rein in acquitted conduct sentencing. Just last month, the U.S. Sentencing Commission declined to advance sentencing guideline amendments that would have curtailed the practice — in line with a Department of Justice memo urging the commission to preserve the status quo. The U.S. Supreme Court has refused to consider the practice’s constitutionality 40 times in less than 10 years. (There are currently over a dozen pending petitions for the Court to review the practice, so it is theoretically possible that the justices will take up the question soon.) And a bill that would have prohibited the punishment of acquitted conduct died at the end of the last congressional session.

As the Federal Sentencing Guidelines currently stand, the judge was allowed to punish McClinton for the murder despite his acquittal because she considered it “relevant conduct” for sentencing purposes. The guidelines mandate that a sentence take into account “all acts and omissions committed . . . by the defendant” or his accomplices. But “relevant conduct” need only be proven to the judge by a preponderance of the evidence — often described as 50 percent certainty plus a feather — whereas a jury must acquit if a crime isn’t proven beyond a reasonable doubt. This mismatch in the standard of proof for a conviction versus a harsher sentence lets federal sentences include time for crimes that a jury said the person on trial didn’t commit.

Given the federal consensus on the legality of acquitted conduct sentencing, state courts may be our best hope for curbing a practice one federal district judge called “Kafka-esque.” “The Federal Constitution provides the floor for constitutional protections, and our own Constitution affords greater protection for individual rights than its federal counterpart,” the New Jersey Supreme Court has explained.

Already, people on trial in Hawaii, Michigan, New Hampshire, and New Jersey are protected from serving prison time for acquitted crimes. The supreme courts of those states have declared that punishing someone for acquitted conduct violates the right to a jury trial and due process — specifically, guarantees of fundamental fairness and the presumption of innocence — enshrined in their state constitutions.

As long ago as 1987, the New Hampshire Supreme Court said in State v. Cote that imposing a sentence for acquitted conduct offends “the notion, so central to our system of justice, that until guilt is proven beyond a reasonable doubt, a defendant is innocent.”

Almost two decades later, Hawaii joined New Hampshire. In People v. Koch, its highest court found that a sentencing judge who “assumed that [a person] had engaged in unlawful conduct of which he had been expressly acquitted” offended due process by relying on that assumption to lengthen the person’s prison sentence.

In 2014, the Michigan Supreme Court echoed this sentiment. It held in People v. Beck that “once acquitted of a given crime, it violates due process to sentence the defendant as if he committed that very same crime,” concluding that the practice “is fundamentally inconsistent with the presumption of innocence itself.” 

Most recently, the New Jersey Supreme Court held in State v. Melvin that “the findings of juries cannot be nullified through lower-standard fact findings at sentencing,” as this undermines the federal and state constitutional right to a jury trial. The court stressed that abiding by a jury’s final verdict is necessary to preserve public trust in the criminal legal system and the rule of law, and as such, “fundamental fairness simply cannot let stand the perverse result of allowing in through the back door at sentencing conduct that the jury rejected at trial.”

Although only a handful of states have outlawed acquitted conduct sentencing, these decisions have the potential to shape legal principles even across state lines. Judges in other states can look to Hawaii, Michigan, New Hampshire, and New Jersey when presented with a challenge to this unjust sentencing practice. And these outcomes contribute to a broader dialogue on acquitted conduct sentencing reform.

The path to fairer sentencing, it seems, starts with the states.

Kathrina Szymborski Wolfkot is an appellate attorney at the MacArthur Justice Center, where she challenges poor medical care, violence, and inhumane conditions in jails and prisons. Her practice focuses on state courts and state constitutions. 

Sole footer logo

A project of the Brennan Center for Justice at NYU Law